T.C. Summary Opinion 2011-81
UNITED STATES TAX COURT
DARA BLUMENTHAL, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 30038-09S. Filed July 5, 2011.
Dara Blumenthal, pro se.
Monica E. Koch, for respondent.
DEAN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect when the petition was filed. Pursuant to section 7463(b),
the decision to be entered is not reviewable by any other court,
and this opinion shall not be treated as precedent for any other
case. Unless otherwise indicated, subsequent section references
are to the Internal Revenue Code of 1986, as amended, and all
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Rule references are to the Tax Court Rules of Practice and
Procedure.
Respondent issued petitioner a Notice of Determination
Concerning Collection Action(s) Under Section 6320 and/or 6330
(the notice of determination). The notice of determination
sustained the filing of a notice of Federal tax lien (NFTL)
issued to petitioner that pertained to her unpaid 2003 Federal
income tax. The issue for decision is whether respondent
correctly sustained the filing of the NFTL.
Background
Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by reference. Petitioner resided in New York
when she filed her petition.
During 2002 petitioner redeemed several savings bonds to pay
her living expenses.1 Although not working in 2002, petitioner
sent the Internal Revenue Service (IRS) a $3,500 check to pay
what she believed was her 2002 tax liability from redeeming the
savings bonds. Petitioner did not file a Federal income tax
return for 2002 until May 2006. Petitioner received a notice
from respondent dated June 12, 2006, alerting her that the period
1
The Court’s “jurisdiction under sec. 6330(d)(1)(A)
encompasses consideration of facts and issues in nondetermination
years where the facts and circumstances are relevant in
evaluating a claim that an unpaid tax has been paid.” Freije v.
Commissioner, 125 T.C. 14, 27 (2005).
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for claiming a refund or credit for 2002 had expired. Petitioner
did not respond to the notice. Petitioner filed her 2003 Federal
income tax return on August 20, 2004, without remittance. On a
transcript entered into evidence a return filed and tax liability
assessed code bears the date August 20, 2004, and shows an
assessment of $3,306. The transcript also shows that interest of
$64.57 and an addition to tax2 for failure to pay of $99.18 were
assessed on the same date.
Respondent sent petitioner a CP 2000 notice dated August 1,
2005, which informed her that the income and payment information
on file did not match the entries on her 2003 return. Respondent
included in petitioner’s income for 2003 interest of $22,435 from
Astoria Federal Savings and dividends of $400 from General Motors
Corp. reported on Forms 1099, which created an increase in tax of
$1,735. On the same transcript mentioned above, an additional
tax assessment code bears the date February 27, 2006, and shows
an additional assessment of $1,735.
Respondent filed an NFTL for the tax period ending December
31, 2003, in the register’s office of Kings County, Brooklyn, New
York, on May 5, 2009, and on the same day mailed a Notice of
Federal Tax Lien Filing and Your Right to a Hearing Under IRC
6320 to petitioner. The lien amount was $5,204.75, which
2
The title for this code entry on the transcript is “failure
to pay tax penalty”. The proper characterization for this amount
is addition to tax.
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included the amounts assessed when petitioner filed her return
and the additional amount assessed on February 27, 2006.
Petitioner timely filed a request for a collection due
process (CDP) hearing wherein she listed her reasons for
disagreeing with the NFTL as “Tax paid - no tax owed” and
“unemployed with no income - lien endangers ability to pay basic
living expenses.” Petitioner was represented by an accountant
through a power of attorney for her CDP hearing. Petitioner’s
hearing was conducted by telephone calls between her accountant
and the Appeals officer (AO) and review of documents petitioner
submitted to Appeals.
Respondent issued petitioner the notice of determination
dated November 10, 2009, in which he determined that the
collection action was appropriate and sustained the filing of the
NFTL. Petitioner timely filed a petition disagreeing with
respondent’s determination.3
Discussion
Section 6321 imposes a lien in favor of the United States
upon all property and rights to property belonging to a person
who is liable for Federal taxes and neglects or refuses to pay
them after notice and demand for payment has been made. Section
3
Petitioner presented several arguments in her petition that
were not addressed at trial. The Court considers those arguments
abandoned. See Nicklaus v. Commissioner, 117 T.C. 117, 120 n.4
(2001); Korchak v. Commissioner, T.C. Memo. 2005-244 n.6.
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6320(a) and (b) provides that a taxpayer shall be notified in
writing by the Commissioner of the filing of an NFTL and provided
an opportunity for an administrative hearing. A hearing under
section 6320 is conducted in accordance with the procedural
requirements of section 6330. Sec. 6320(c).
If a taxpayer requests a hearing in a lien case, the hearing
is to be conducted by the Appeals Office. Sec. 6320(b)(1). At
the hearing the AO must verify that the requirements of any
applicable law or administrative procedure have been met. Secs.
6320(c), 6330(c)(1). The taxpayer may raise any relevant issue
with regard to the Commissioner’s intended collection activities,
including challenges to the appropriateness of the proposed lien
and collection alternatives. Sec. 6330(c)(2)(A). A taxpayer is
expected to provide all relevant information requested by Appeals
for its consideration of the facts and issues involved in the
hearing, including financial statements. Secs. 301.6320-1(e)(1),
301.6330-1(e)(1), Proced. & Admin. Regs. A taxpayer may raise
challenges to the existence or amount of the underlying tax
liability if she did not receive a notice of deficiency or
otherwise have an opportunity to dispute the tax. Sec.
6330(c)(2)(B).
If a taxpayer’s underlying liability is properly at issue,
the Court reviews any determination regarding the underlying
liability de novo. Sego v. Commissioner, 114 T.C. 604, 610
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(2000); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000). The
Court will review all other determinations regarding the proposed
collection for abuse of discretion. Sego v. Commissioner, supra
at 610; Goza v. Commissioner, supra at 181-182. Generally, we
consider only arguments and issues the taxpayer raised at the
collection hearing or otherwise brought to the attention of
Appeals. Giamelli v. Commissioner, 129 T.C. 107, 112-113 (2007);
Magana v. Commissioner, 118 T.C. 488, 493 (2002); see also sec.
301.6330-1(f)(2), Q&A-F3, Proced. & Admin. Regs.
Petitioner’s three arguments that the NFTL is invalid are:
(1) She did not receive a hearing; (2) her 2002 overpayment of
taxes should be applied to her 2003 tax liability; and (3) the
collection action is inappropriate because it will prevent her
from paying her living expenses.
Petitioner’s CDP Hearing
A CDP hearing may consist of one or more written or oral
communications between an AO and the taxpayer. Sec.
301.6330-1(d)(2), Q&A-D6, Proced. & Admin. Regs.; see Katz v.
Commissioner, 115 T.C. 329 (2000); Dinino v. Commissioner, T.C.
Memo. 2009-284. The statute requires only that a taxpayer be
given a reasonable chance to be heard before the issuance of a
notice of determination. Roman v. Commissioner, T.C. Memo. 2004-
20.
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Petitioner testified that she did not have a proper hearing
because when her accountant called the AO, her accountant was not
prepared for the hearing and did not know that his telephone call
with the AO constituted a hearing. It is clear from the
administrative record that petitioner’s accountant had more than
one conversation with the AO and that petitioner herself faxed
documents to the AO. Petitioner was afforded a hearing under the
guidelines of the statute. See Katz v. Commissioner, supra;
Dinino v. Commissioner, supra; Roman v. Commissioner, supra.
Applying the 2002 Overpayment to the 2003 Tax Liability
Petitioner argues that her overpayment of taxes for 2002
should be applied to her tax liability for 2003. Respondent
argues that the 2002 overpayment petitioner seeks to apply to
2003 is barred by section 6511(b)(2).4
The amount of a credit or refund is limited by two “look-
back” periods. Commissioner v. Lundy, 516 U.S. 235, 239-240
(1996). A claim for credit or refund of an overpayment of any
tax “shall be filed by the taxpayer”: (1) Within 3 years from
the time the return was filed, or (2) within 2 years from the
time the tax was paid, whichever of those periods expires later.
Sec. 6511(a). Under the 3-year look-back period, if the claim
was filed within 3 years of filing the return, then the taxpayer
4
The Court need not determine what standard of review to use
for petitioner’s argument because her argument is a legal one and
the standard of review is immaterial.
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is entitled to a refund of taxes paid within 3 years immediately
preceding the filing of the claim, plus the period of any
extension of time for filing the return. Sec. 6511(b)(2)(A).
If no return is filed, the taxpayer is entitled to a refund
of only those taxes paid during the 2 years immediately preceding
the filing of the refund claim. Sec. 6511(b)(2)(B). In the case
of any overpayment by a taxpayer, the Commissioner generally may,
within the applicable period of limitations, credit the amount of
such overpayment against any tax liability of that taxpayer.
Sec. 6402(a).
Petitioner filed her 2002 Federal income tax return in May
2006. Her tax return is her claim for refund. See sec.
301.6402-3(a)(1), Proced. & Admin. Regs.; see also Anderson v.
Commissioner, T.C. Memo. 1993-288 (tax return is an informal
claim for refund or credit), affd. without published opinion 36
F.3d 1091 (4th Cir. 1994). As they were on the same document,
petitioner’s claim was filed within 3 years of the filing of the
return for 2002 and is timely. See Omohundro v. United States,
300 F.3d 1065 (9th Cir. 2002); see also Rev. Rul. 76-511, 1976-2
C.B. 428. Petitioner is therefore allowed to claim a refund of
or credit for any tax paid within the 3-year period immediately
preceding her claim. See sec. 6511(b)(2)(A).
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The 3-year “look-back” period immediately preceding
petitioner’s claim would be from May 2003 to May 2006.5 The
overpayment that petitioner wants credited to 2003 was paid in
2002. No portion of the overpayment was paid in the 3-year
“look-back” period. Although petitioner’s claim for refund or
credit was timely, a refund or credit of petitioner’s 2002
overpayment is barred.6 See sec. 6511(b)(2)(A).
Appropriateness of the Lien
Petitioner also argues that enforcement of the lien will
make it difficult for her to pay her living expenses. The Court
will review respondent’s determination for abuse of discretion.
See Sego v. Commissioner, 114 T.C. at 610; Goza v. Commissioner,
114 T.C. at 181-182. Petitioner testified that she had applied
for disability benefits and public assistance. She did not
provide the applications themselves as evidence. Petitioner
neither provided respondent with a Form 433-A, Collection
Information Statement for Wage Earners and Self-Employed
5
Petitioner did not file for any extension of time to file
her 2002 return.
6
Petitioner also argues that an IRS employee told her there
was no deadline for filing her 2002 return. Estoppel applies
only to statements of fact, not statements of law. United States
v. Bloom, 112 F.3d 200, 205 (5th Cir. 1997); Miller v.
Commissioner, T.C. Memo. 2001-55. Even if petitioner’s estoppel
argument concerned a statement of fact, the Court notes that her
alleged reliance on advice from the IRS is undermined to the
extent that such advice was oral. See Henry v. United States,
870 F.2d 634, 637 (Fed. Cir. 1989) (and cases cited therein).
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Individuals, during the Appeals process, nor offered further
evidence beyond her testimony of her financial situation at
trial. Petitioner did not offer any other collection
alternative. We therefore sustain respondent’s determination
that the collection action was appropriate.
Conclusion
Petitioner was afforded a CDP hearing. Petitioner’s request
for a credit of her 2002 overpayment of Federal income tax to her
2003 Federal income tax liability is barred by section
6511(b)(2)(A); therefore, the 2003 tax liability remains unpaid.
Respondent’s determination to sustain the NFTL in the light of
petitioner’s failure to provide financial information or other
collection alternatives was not an abuse of discretion.
We have considered petitioner’s arguments, and, to the
extent not mentioned, we conclude the arguments to be moot,
irrelevant, or without merit.
To reflect the foregoing,
Decision will be entered
for respondent.